Superna Eyeglass - End User License and Support Services Agreement

Superna Eyeglass

Software License and Services Agreement


This Software License and Services Agreement (the “Agreement”) is a legal agreement between you (“you” or “Company”), and Superna, LLC, a Delaware Limited Liability Company with its principal place of business located at 225 Cedar Hill St., Ste. 200, Marlborough, MA 01752 USA  (“Superna”).  Your right to use the Superna Eyeglass® product is set forth in this Agreement .  


THIS IS A LEGAL AGREEMENT. BY ACCESSING AND USING THE LICENSED PRODUCT, YOU ARE ACCEPTING AND AGREEING TO THIS AGREEMENT ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT IN CONNECTION WITH THE ACCESS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ACCEPT AND AGREE ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT.   IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THESE TERMS, YOU SHOULD CEASE ACCESSING OR USING THE LICENSED PRODUCT.


AS DESCRIBED BELOW, SECTION 8 DESCRIBES IMPORTANT LIMITATIONS OF THE LICENSED PRODUCT AND RELATED SERVICES, ESPECIALLY IN CONNECTION WITH LICENSED PRODUCT IMPLEMENTATION, SYSTEM DESIGN, DATA LOSS AND FAILOVER OF DATA.   PLEASE READ THESE DISCLOSURES CAREFULLY, AS YOU ARE ACKNOWLEDGING THEM AND ACCEPTING THEM.


IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT DO NOT DOWNLOAD, INSTALL OR OTHERWISE USE THE LICENSED PRODUCT.


Definitions:

1.1 Affiliate means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control" for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.   


1.2 Computer System means the computer hardware equipment on which Company has elected to install and/or execute the Licensed Program.


1.3 Device means a physical hardware or virtual system that supports the IP protocol for communications and is recognized by the Licensed Program as a manageable system.  Such Devices may be physical, virtual or a manageable component of a larger system.  Examples of Devices that may be recognized by the Licensed Program include but are not limited to: computer servers, computer clients, virtual machines, hypervisors, hypervisor management servers, blade servers, converged infrastructure devices, routers, switches, virtual switches, access points, firewalls, load balancers, wireless access points, vpn concentrators, network appliances, virtual network device instances, storage devices, storage appliances, point of sale systems, printers, phone switches, telecommunications equipment, UPS, power devices, industrial control systems and other systems supporting IP communications discovered by the Licensed Program.  


1.4 Documentation means the softcopy documentation that may be provided by Superna with the Licensed Program, such as user manuals, guides, release notes, or online help information.


    1. Effective Date means the date that you accept the terms of this Agreement.


    1. Error means a failure of the Licensed Program to materially conform to its Documentation, but excluding any nonconformity resulting from Company's: (a) misuse, improper use, or unauthorized modification of any Licensed Product; (b) Company's failure to implement Minor Releases or Major Releases; or (c) the combining of the Licensed Product with hardware or software other than the Prerequisites or other than as contemplated by the Documentation.


1.7 Fees means the aggregate fees for the Licensed Program and Optional Features selected by Company and those fees for Maintenance and Technical Support.


1.8 Licensed Product means, collectively, the Licensed Program, any Licensed Program application program interface (“API”),  Documentation.


1.9 Licensed Program means the executable code version of the Superna Eyeglass software and any Optional Features.  Licensed Program includes any Updates or Upgrades that may be delivered by Superna to Company during the Term, as defined in Section 5.2.  Licensed Program does not include Prerequisites, as defined in Section 4.2, or Third Party Code.


1.10 Maintenance and Technical Support Services  means those services described in Section 9.2 and Exhibit A, attached hereto and incorporated by reference.



1.11 Optional Features means additional license key enabled or other functionality of the Licensed Program  Company may acquire rights to use, as further described in Section 8.4.


1.12 Order Email means the email or other communication from Superna which includes the specific Licensed Program purchased by Company, Authorized Use Limitation, as defined in Section 3.1 and the Initial Maintenance and Technical Support Period or Renewal Period, as defined in Section 9.1.


 1.13 Third Party Code means those third-party components provided with the Licensed Program.  


1.14 Update means a release of the Licensed Program that contains error corrections and/or minor functional enhancements.  


1.15 Upgrade means a version of the Licensed Program that contains new or substantial functional       enhancements.

Fees; Registration; Activation:


2.1 The Fees are due and payable by Company in accordance with the terms and conditions provided by Superna’s authorized reseller.   For any other amounts owed to Superna pursuant to this Agreement, such payments shall be made in United States dollars, and if not paid within thirty (30) days of when due (or such longer period set forth in an invoice) will be subject to interest at the rate of eighteen percent (18%) annually, or the maximum amount allowed by applicable law if lower, calculated from the date when payment was due until payment is made.   In addition, Company agrees to pay any reasonable cost of collecting any past-due amounts under this Agreement, including but not limited to attorneys’ fees and costs.


2.2 According to its discretion, Superna may include features in the Licensed Program to prevent unlicensed use of the Licensed Program.  You agree that Superna may do so.   In particular, use of the Licensed Program and the Services require you to activate through Superna’s website (more fully described here http://documentation.superna.net/eyeglass-isilon-edition/get-help/how-to-raise-an-eyeglass-isilon-support-request).   During such activation or registration, Company must register and provide current, accurate, official Company email domains, product appliance identification or appliance ID, and other information requested by Superna as part of the support account registration process (“Registration Information”).  Company is responsible for maintaining the accuracy and completeness of Registration Information at all times that Maintenance and Technical Support services are active.  Upon receipt of an Order email from Superna, Company shall be entitled to access or use Maintenance and Technical Support services.  Company is responsible for maintaining the confidentiality of its credentials to access or use the Maintenance and Technical Support services and, accordingly, will be fully responsible for all activities that occur utilizing such credentials. Company agrees to immediately notify Superna of any unauthorized use of the Maintenance or Technical Support Services or any other breach of security with respect to the Licensed Program. Superna will not be liable for any loss or damage arising from Company’s failure to provide Superna with accurate Registration Information or to keep their access to the Maintenance and Technical Support services secure.



License; Feedback:


3.1     Evaluation License:   With respect to any Licensed Program identified in the Evaluation support case email as evaluation or demonstration software, Superna hereby grants, and Company hereby accepts, a revocable, non-exclusive, non-transferable license to use the Licensed Product, and the Documentation supplied with such Licensed Program, solely for internal non-production testing, evaluation, and demonstration purposes, and not for commercial use.    The foregoing license shall be limited to use by Company for 30 days , unless otherwise agreed in such order.  3.4.  The Evaluation license will have limits applied to features and functions.  These limits are applied at Superna’s sole discretion.   Under no conditions will a fully functional unlimited License be provided for the purpose of Evaluation of an unpaid Licensed Product.


3.1.1. Company may provide to Superna reasonable suggestions, comments and feedback regarding the Software, including but not limited to usability, bug reports and test results, with respect to the evaluation and testing of the, Licensed Product ("Feedback"). Company grants to Superna, under all of its intellectual property and proprietary rights, the following worldwide, non-exclusive, perpetual, irrevocable, royalty free, fully paid up rights: (i) to make, use, copy, modify, and create derivative works of, the Feedback as part of any Superna’s offering, (ii) to publicly perform or display, import, broadcast, transmit, distribute, license, offer to sell, and sell, rent, lease or lend copies of the Feedback (and derivative works thereof) as part of any Superna’s offering, (iii) solely with respect to all copyright and trade secret rights, to sublicense to third parties the foregoing rights, including the right to sublicense to further third parties.


3.1.2.  Company acknowledges and agrees that Superna is providing the Evaluation License solely    to permit Company to evaluate the Licensed Program.  Consequently, Company agrees that it will take all precautions and safeguards necessary to protect its data and systems from loss or damage.  THE LICENSED PROGRAM IS PROVIDED “AS IS,” WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.


3.1.3. NOTWITHSTANDING THE TERMS SET FORTH IN THIS AGREEMENT, SUPERNA PROVIDES THE EVALUATION LICENSE PROGRAM TO COMPANY SOLELY FOR EVALUATION PURPOSES. SUPERNA SHALL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL, OR FOR LOST REVENUES, OR LOST DATA, SYSTEMS OR LOST PROFITS, UNDER ANY THEORY OF LIABILITY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.



3.2 License: Subject to Company’s compliance with the terms set forth in this Agreement, Superna  grants to Company perpetual, non-exclusive, non-transferable license to the Licensed Product identified in the Order email solely for Company’s own internal use.  This license is limited to the maximum number of Devices you may monitor as set forth in the applicable Order Email (“Authorized Use Limitation”).  


3.3. License Restrictions: Company shall not, and shall not permit any third party to:

  1. monitor more Devices than set forth in the Authorized Use Limitation;

  2. copy the Licensed Products, in whole or in part;

  3. modify, correct, adapt, translate, enhance or otherwise prepare derivative works or improvements of the Licensed Products;

  4. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Licensed Products to any party, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;

  5. transfer the Licensed Program to any third party after it is installed on the Computer System;

  6. reverse engineer, disassemble, decompile, decode or adapt the Licensed Products;

  7. remove, delete, efface, alter, obscure, translate, combine, supplement or otherwise change any trademarks, disclaimers, or proprietary rights notices or other symbols, notices, or marks relating to any copy of the Licensed Products;

  8. use the Licensed Product in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property or other right of any third party, or that violates any applicable law;

  9. use the Licensed Product in such a way that results in Company’s development of software products that are directly or indirectly competitive with the Licensed Program or other Superna products or services; or

  10. use the Licensed Product for any purpose or application not expressly permitted by this Agreement.



3.4. Superna reserves the right, periodically and at any time, to modify or discontinue, temporarily or permanently, functions and features of the Licensed Program in future releases, with notice posted to http://documentation.superna.net/ or change, update or modify the terms and conditions set forth in this Agreement upon notice to you.  You acknowledge and agree that Superna shall have no liability to you for any interruption, modification or discontinuation of any feature of the Licensed Program or change to these terms.   You understand and agree that Superna has no obligation to update the Licensed Program in future releases.


Ownership; Prerequisites; Third Party Code:


4.1 The Licensed Product is the proprietary property of Superna or its licensors and is protected by the copyright and trademark law of the U.S., international treaties and other applicable laws. Superna, its Affiliates and licensors retain any and all rights, title and interest in and to the Licensed Product, including in all copies, improvements, enhancements, modifications and derivative works of the Licensed Product. Company’s rights to use the Licensed Product shall be limited to those expressly granted in Section 3.1. All rights not expressly granted to Company are retained by Superna, its Affiliates or its licensors.


4.2 Superna shall identify a list of prerequisite hardware and software required for installation and use of the Licensed Program (“Prerequisites”).  Company shall be responsible for acquiring, or authorizing Superna to acquire on Company’s behalf, all Prerequisites prior to installation and use of the Licensed Program.  Superna shall not be a party to any software or other license agreement associated with the Prerequisites whether or not downloaded or installed by Superna personnel on Company’s behalf.  Notwithstanding anything to the contrary in this Agreement, Superna makes no warranty of any kind with regard to the Prerequisites.


4.3 Superna shall identify a list of Third Party Code contained within the Licensed Program at http://documentation.superna.net/3rdpartynotices and all such Third Party Code shall be subject to the license terms set forth therein.  Superna shall not be a party to any software or other license agreement associated with Company’s use of the Third Party Code.   Notwithstanding anything to the contrary in this Agreement, Superna makes no warranty of any kind with regard to the Third Party Code.


Term and Termination:


5.1    Subject to the limitations herein, the term of the license to use the Licensed Program as set forth in this Agreement shall be for a period commencing upon the Effective Date and continuing until such time as Company discontinues use of the Licensed Product on the Computer System or this Agreement is terminated in accordance with Section 5.2, but otherwise without limitation as to duration (the “Term”).  Notwithstanding the foregoing, Company’s license to use the Optional Features shall commence on the date of the Order Email and continue until the expiration or termination of the Maintenance and Technical Support Period described in the Order Email for Optional Features, as defined in Section 9.1, or any renewal Maintenance and Technical Support period, as applicable, or termination of this Agreement in accordance with Section 5.2.


5.2    Superna shall have the right to terminate Company’s license if Company fails to pay any required Fees or otherwise fails to comply with the terms and conditions set forth herein (each a “Default”).   In the event that a Default is not payment-related, Superna shall give written notice to Company of such Default.  If the Default has not been remedied within thirty (30) days after such notice, the license granted hereunder and any access to Maintenance and Technical Support shall terminate.  In the event that Company has failed to pay any required License Fee, whether an initial license Fee or a Fee for Optional Features, Maintenance and Technical Support or any other services, Superna shall give written notice to Company of such Default.  If the Default has not been remedied in full within five (5) days of such notice, all licenses granted hereunder, and all entitlement to access Optional Features and Maintenance and Technical Support services, are hereby automatically revoked without further notice.


5.3    Company agrees, upon termination by reason of this Agreement for any reason, to immediately return or destroy the Licensed Program and copies thereof as directed by Superna and, if requested by Superna, to certify in writing as to the destruction or return of the Licensed Product and all copies thereof.  


5.4    Sections 3.2, 4.1, 5.3, 5.4, 6.5, 7.2, 8.3, 10, 13 and 15 of this Agreement shall survive the expiration or termination of Company’s license and this Agreement.


Warranty:


6.1 Superna warrants that:


  1. for a period of ninety (90) days following the Effective Date (the “Program Warranty Period”) that the Licensed Program will substantially conform to the specifications in the Documentation, including any known bugs or defects, when used in accordance with the Documentation; and


  1. during the Initial Maintenance and Technical Support Period, as defined in Section 10.1, and any Maintenance and Technical Support renewal period (the “Services Warranty Period”), services described herein shall be performed in a reasonable and workmanlike manner, consistent with generally accepted industry standards.  


6.2 Company’s exclusive remedy for any breach of the warranties contained in Section 6.1 during the applicable warranty period, is for Superna, at its expense, to use commercially reasonable efforts to:  (a) replace or repair the Licensed Program; or (b) re-perform the services.  Company must notify Superna in writing of any such defect within the applicable warranty period.  

6.3 In the event Superna is unable, after using commercially reasonable efforts to remedy the defects identified by Company pursuant to Sections 6.1(a) and 6.1(b), Company’s sole and exclusive remedy shall be:  for Section 6.1(a), to return the Licensed Product, terminate Company’s rights under this Agreement and receive a pro-refund of payments actually received by Superna from Company for the Licensed Product (or the Optional Feature, if applicable) which is the subject of the warranty claim; and, for Section 6.1(b), to receive a pro-rata refund of fees actually paid by Company for the deficient services.  


6.4 Any modification or attempted modification of the Licensed Product by Company, any failure by Company to implement any improvements or updates to the Licensed Product as supplied by Superna, or any use of the Licensed Product not in compliance with the specifications set forth in the Documentation, shall void the limited warranties set forth in Section 6.1.   


6.5 EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION 6:

(a) SUPERNA, ITS AFFILIATES, LICENSORS AND RESELLERS, EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS WELL AS ALL WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PEFORMANCE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW;

(b) SUPERNA, ITS AFFILIATES, LICENSORS AND RESELLERS, MAKE NO WARRANTY THAT THE LICENSED PRODUCT AND/OR SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE LICENSED PRODUCT AND/OR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, THAT ANY PRODUCT DATA STORED BY SUPERNA WILL BE SECURE, ACCURATE OR RELIABLE,  THAT ERRORS OR DEFECTS IN THE LICENSED PROGRAM WILL BE CORRECTED, OR THAT THE LICENSED PRODUCT OR SERVICES WILL BE FREE OF VIRUSES OR OTHER HARMFUL CODE; NOR DOES SUPERNA MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE LICENSED PRODUCT AND/OR SERVICES, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW;

(c) GIVEN THE NATURE AND VOLUME OF MALICIOUS AND UNWANTED ELECTRONIC CONTENT, NEITHER SUPERNA, NOR ITS AFFILIATES, LICENSORS OR RESELLERS MAKE ANY WARRANTY THAT THE LICENSED PRODUCT OR THE SERVICES WILL DETECT ONLY OR ALL SECURITY OR MALICIOUS CODE THREATS OR THAT USE OF THE SOFTWARE AND RELATED UPDATES WILL KEEP CUSTOMER’S NETWORK OR COMPUTER SYSTEMS FREE FROM VIRUSES OR OTHER MALICIOUS OR UNWANTED CONTENT OR SAFE FROM INTRUSIONS OR OTHER SECURITY BREACHES.


Mutual Indemnification:


7.1 Superna shall defend Company against any claim, demand, suit, or proceeding made or brought against Company by a third party alleging that the use of the Licensed Program as permitted hereunder infringes or misappropriates the copyright or Canadian or U.S. patent rights of a third party (a "Claim Against Company"), and shall indemnify Company for any damages, attorneys’ fees and costs finally awarded against Company as a result of, and for amounts paid by Company under a court approved settlement of, a Claim Against Company;  provided, however, that  Company shall (a) promptly give Superna written notice of the Claim Against Company; (b) give Superna sole control of the defense and settlement of the Claim Against Company (provided that Superna may not settle any Claim Against Company unless the settlement unconditionally releases Company of all liability); and (c) provide to Superna all reasonable assistance, at Superna’s expense. In the event of a Claim Against Company, or if Superna reasonably believes the Licensed Program may infringe, Superna may in its discretion and at no cost to Company (i) modify the Licensed Program so that it no longer infringes, without breaching its warranties under Section 6.1 above, (ii) obtain a license for Company’s continued use of the Licensed Program in accordance with this Agreement, or (iii) terminate Company’s license for such Licensed Programs upon ten (10) days’ written notice and refund payments actually received by Superna from Company for the Licensed Product which is the subject of the infringement claim.  Superna shall have no indemnification obligation for any claim to the extent based upon the following:  (a) Company’s use of the Licensed Program in combination with other items when such infringement would not have occurred from the use of the Licensed Program solely for the purpose for which they were designed or sold by Superna; (b) modifications to the Licensed Program not authorized in writing by Superna; or (c) Company’s continued use of the Licensed Program following notification to suspend use due to a claim or threat of a claim.


7.2. Company shall defend Superna, and its Affiliates, licensors and resellers (each a “Superna Indemnitee”), against any claim, demand, suit or proceeding made or brought against such Superna Indemnitee by a third party: (i) alleging that Company’s use of the Licensed Programs, or services in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, or (ii) is otherwise related to a breach by Company of this Agreement (a "Claim Against Superna"), and shall indemnify the Superna Indemnitee for any damages, attorneys’ fees and costs finally awarded against such Superna Indemnitee as a result of, or for any amounts paid by a Superna Indemnitee under a court-approved settlement of, a Claim Against Superna; provided that Superna (a) promptly gives Company written notice of the Claim Against Superna; (b) gives Company sole control of the defense and settlement of the Claim Against Superna (provided that Company may not settle any Claim Against Superna unless the settlement unconditionally releases the Superna Indemnitee of all liability); and (c) provides to Company all reasonable assistance, at Company’s expense.  Company shall have no indemnification obligation for any claim to the extent based upon the gross negligence or willful misconduct of a Superna Indemnitee.


7.3 If at any time during the Term, Company has actual knowledge of any infringement of, litigation instituted with respect to, or challenge to the Licensed Product a service, or any component thereof, or any Superna trademark, Company shall immediately notify Superna in writing.  Additionally, in such event, Company shall immediately furnish to Superna copies of any correspondence, notices, advertising, complaints, legal documents, or other written materials relating such alleged infringement, litigation or challenge which it may have in its possession.  


7.4 This Section 7 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 7.


Limitations  of Licensed Program and Optional Features:


8.1 Company acknowledges that  Licensed Program is a tool that is not intended to replace the professional skills and judgment of Company and its employees, agents and consultants.  Company further acknowledges that Company, in Company’s sole discretion shall be responsible for the system design, implementation,  use and specifically executing failover and or recovery procedures while using the Licensed Program or Documentation, or any reliance thereon by Company or Company’s authorized users.  Company shall also be responsible for the continued operation and maintenance of the Computer System, the Prerequisites, and the Devices monitored by the Licensed Program.   


8.2 Company agrees to regularly backup Company data and Computer Systems on separate media and in accordance with generally accepted practices.  Company acknowledges that any failure to back-up data and systems may cause Company to lose data in the event of an error in or other failure of the Licensed Program or the services.  Since only Company, not Superna, can know the value of customer Computer Systems and data, only Company can plan and implement backup plans and safeguards appropriate to Company’s needs in the event of an error in or other failure of the Licensed Program or the services causes Computer System problems or data loss.  


8.3 Company agrees that it is solely responsible for the design, repair and configuration of Company’s Computer Systems, Devices, and the planning and implementation of and compliance with Company’s procedures and protocols for disaster recovery and other risks associated with the Computer System and Devices monitored.  Company assumes all risks and liability for results obtained by the use of the Licensed Program and/or implementation of plans or procedures that are in any way influenced by the use of the Licensed Program or the Reports.   Company shall protect, indemnify, hold harmless and defend Superna and its Affiliates, licensors and resellers, of and from any loss, cost, damage or expense, including attorneys’ fees, arising from any claim asserted against Superna, or its Affiliates, licensors and resellers, that is in any way associated with the matters set forth in Sections 8.1 through 8.3.


8.4 In order to utilize the Optional Features, Company agrees to install all upgrades to the Licensed Program and otherwise comply with applicable Documentation for the Licensed Program and such Optional Features, at all times.   All Documentation is provided “as is” and “as available”. Superna cannot guarantee that it is correct or up to date.  Company acknowledges that the Optional Features provide documented compute resources to achieve the maximum number of supported Devices and scalability.   If Company commits insufficient compute, memory and disk resources, or fails to install any Prerequisites, this may result in: (a) loss of entitlement to Maintenance and Technical Support services; and (2) unpredicted response times and software behaviors: and (3) voiding of the warranties set forth in Section 7.1.  Company must routinely install Minor Releases and follow any updates to the Licensed Program for the Optional Features to operate effectively.


8.5 Licensed Product or Optional Features allows Company to explicitly opt in to the “Phone Home Feature” to share anonymized “Meta Data” that is a subset of System Data to Superna to assist with Licensed Product enhancements.  This Meta Data if authorized will  sent automatically to servers owned or controlled by Superna or its Affiliates for storing, analyzing, debugging, and reporting errors or abnormal behaviors.  The Meta Data will be handled as per the terms and conditions within this agreement.  


Maintenance and Technical Support Services


9.1 The Order Email sets forth the initial Maintenance and Technical Support services entitlement period for the Licensed Product (“Initial Maintenance and Technical Support Period”).  In the event that Company allows a lapse in Maintenance and Technical Support Services for any period of time, Superna may, in its sole discretion, elect to provide Company limited Technical Support services on an “as is” basis with no service level commitment and no access to Maintenance services.  In the event of any termination or lapse as contemplated by this Section 9.1, Superna may require Company to acquire any Update or Upgrade by paying the then-current Licensed Program Fee for including Maintenance and Technical support services.  Upon receipt of such payment, Superna will issue a new license key for the Licensed Program Maintenance and Technical Support services to Company which will include the Authorized Use Limitation and the Maintenance and Technical Support entitlement period.


9.2 Maintenance Services.  If Company maintains Maintenance and Technical Support services during the Term, Superna will provide Company with access to Upgrades and Updates, if any, and appropriate Documentation for installation by Company.  Superna may also provide to Company release notes providing additional information and provisional solutions to reported problems with the Licensed Program.


9.3 Technical Support Services.  Technical Support services shall consist of technical support to be rendered in the English language by Superna as described in Exhibit A and the Documentation.  Superna reserves the right to alter or amend the provisions of these sections, or terminate the provision of Technical Support Services for the Licensed Program, upon the end of the then-current Maintenance and Technical Support services term.  Superna will use its commercially reasonable efforts to assist Company with requests for Technical Support.  Superna does not guarantee any particular response or resolution time for such requests.  Any materials provided to Company by Superna in connection with Technical Support services shall be deemed “Licensed Products” and are licensed, not sold to Company.  Technical support services do not cover any procedure or use of the Licensed Product outside of the Documentation.


Confidential Information:


10.1 Information and data supplied by either party to the other party may include confidential or proprietary information.  Confidential or proprietary information (“Confidential Information”) means any information or data (including without limitation any formula, pattern, compilation, program, device, method, technique, or process) that is disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) pursuant to this Agreement and marked or otherwise identified in writing as confidential.  Confidential Information of Superna includes, but is not limited to, the Licensed Product, the structure, organization, design, algorithms, methods, templates, data models, data structures, flow charts, logic flow, and screen displays associated with the Licensed Program, the Documentation, and pricing information.  Confidential Information of Company may include, but may not be limited to, Company’s financial and business information.   Confidential Information shall not include information that either party can demonstrate: (i) at the time of disclosure is in the public domain or is otherwise available to the Receiving Party other than on a confidential basis; (ii) after disclosure, becomes a part of the public domain by publication or otherwise through no fault of the Receiving Party; (iii) was disclosed to the Receiving Party by a third party not under an obligation of confidentiality to the Disclosing Party; or (iv) is or has been independently developed by the Receiving Party (as evidenced by the Receiving Party’s written records) without access to any Confidential Information of the Disclosing Party.


10.2 Each party agrees: (i) to hold the Disclosing Party’s Confidential Information in confidence; and (ii) except as expressly authorized by this Agreement, not to, directly or indirectly, use, disclose, copy, transfer or allow access to the Confidential Information.  Notwithstanding the foregoing, a Receiving Party may disclose Confidential Information of the Disclosing Party as required by law or court order; in such event, such party shall inform the other party in writing prior to any such required disclosure.  And, notwithstanding any other provision of this Agreement, Superna will not be prevented or restricted by this Agreement from using any technique, idea, concept or know-how relating to Superna’s business activities.


Proprietary Rights; Product Data


11.1 Company agrees to allow Superna, and its Affiliates and resellers, to store and use the personal information Company provides in connection with its use of the Licensed Product, including Registration Information, System Data, and information contained within any Report or request for Technical Support (collectively “Product Data”), anywhere Superna, its Affiliates or its resellers do business, and as set forth in the Privacy Policy at http://site.superna.net/privacy.   You confirm that you are solely responsible for any personal information that may be contained in the Product Data and for compliance with applicable data protection laws.  


11.2 Company grants to Superna and its Affiliates a non-exclusive, irrevocable, royalty-free, worldwide license, with right to sublicense, to use, analyze, copy, make, sell, modify and enhance Product Data: (a) to the extent that such license is required to enable Superna to perform the Maintenance and Technical Support services or support the Optional Features; and (b) in de-identified, aggregated form for statistical purposes and to enhance and extend the functionality of the Licensed Product. In addition, Superna shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Licensed Product or services any suggestions, enhancement requests, recommendations or other feedback provided by Company or its personnel relating to the operation of the Licensed Product or services.


  


General:


12.1.  Export:  Company acknowledges that the Licensed Product provided hereunder may be subject to export controls.  Company agrees that any Licensed Product licensed hereunder will not be exported (or re-exported from the country where it was first installed), directly or indirectly, separately or as part of a system, without Company, at its own cost, first obtaining all necessary licenses from the United States Department of Commerce and any other appropriate agency of the United States or other government as may be required by law.  Company acknowledges that it shall be solely responsible for determining the extent of any such licenses required, and for any costs associated with complying with the requirements of this Section 12.


12.2.   U.S. Federal Government End Use Provisions:  Superna provides the Licensed Product for ultimate U.S. federal government end use solely in accordance with the following:  Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with us to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.   


12.3. Audit:  Superna shall have the right, during the Term and for a period of one (1) year thereafter, during regular business hours and with ten (10) business days’ notice, to audit Company’s compliance with the Authorized Use Limitation and usage of the Licensed Product (but only to the extent required to determine that Company’s use of the Licensed Product is consistent with the uses permitted under this Agreement), and Company shall permit Superna to have access to such properties, records and personnel of Company as Company may reasonably require for such purpose. Superna may exercise this right once in any twelve (12) month period unless there is a reasonable and substantiated belief that Company has breached a material provision of this Agreement.  The audit will be conducted by Superna or its authorized representatives. Client agrees that Company shall have the right, upon discovering a violation of any of the Authorized Use Limitation or other material provision hereof, to terminate the Agreement.


12.4 Notice:  Any notice or other communication given hereunder shall be in writing.  Notice shall be considered delivered and effective upon receipt when sent by U.S. Mail, postage prepaid, or certified mail, return receipt requested, addressed to the parties as set forth above.  Either party, upon written notice to the other, may change any name or address to which future notice shall be sent.



12.5 Assignment.  Company may not assign any of its obligations, rights or remedies hereunder without prior written permission from Superna.  Any attempted assignment in violation of this provision shall be null and void.


12.6 Waiver.  The waiver or failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further right hereunder.  This Agreement constitutes the complete understanding between the parties with respect to the subject matter herein and supersedes all proposals, all previous negotiations and agreements, written or oral, express or implied, between the parties with respect to the subject matter herein. This Agreement may not be waived, altered, amended or modified except in writing, directly referencing the Agreement, and signed by authorized representatives of both parties.


12.7 Independent Contractors.  It is expressly agreed that the parties are acting hereunder as independent contractors.  Under no circumstances shall any of the employees of one party be deemed the employees of the other for any purpose.


12.8 Force Majeure.  UNDER NO CIRCUMSTANCES SHALL SUPERNA BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM ACTS OF NATURE, FORCES OR CAUSES BEYOND ITS REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET FAILURES, COMPUTER EQUIPMENT FAILURES, TELECOMMUNICATION EQUIPMENT FAILURES, OTHER EQUIPMENT FAILURES, ELECTRICAL POWER FAILURES, STRIKES, LABOUR DISPUTES, RIOTS, INSURRECTIONS, CIVIL DISTURBANCES, SHORTAGES OF LABOUR OR MATERIALS, FIRES, FLOOD, STORMS, EXPLOSIONS, ACTS OF GOD, WAR, GOVERNMENTAL ACTIONS, ORDERS OF DOMESTIC OR FOREIGN COURTS OR TRIBUNALS, NON-PERFORMANCE OF THIRD PARTIES, OR LOSS OF OR FLUCTUATIONS IN HEAT, LIGHT OR AIR-CONDITIONING.


12.9 Validity.  If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, such determination shall not affect the validity or enforceability of any other part or provision of this Agreement.


12.10 Equitable Relief.  The obligations of Company under Sections 3.2, 8 and 10 hereof are of a special and unique character which gives them a peculiar value to Superna and its Affiliates, licensors and resellers for which neither Superna nor these third parties can be reasonably or adequately compensated in damages in the event Company breaches such obligations.  Therefore, Superna and its Affiliates, licensors and resellers, in addition to other remedies which may be available, shall each be entitled to injunctive and other equitable relief in the event of the breach or threatened breach of such obligations.


12.11 Governing Law.  This Agreement shall be governed by the substantive laws of the Commonwealth of Massachusetts, U.S.A., without regard to any conflict of law provisions.  This Agreement will not be governed by the United Nations Convention of Contracts for the International Sale of Goods, or by the Uniform Commercial Code, the application of which are expressly excluded.  The parties agree that sole jurisdiction and venue for any dispute relating to the Agreement shall be in the state courts of Massachusetts or the United States District Court for the District of Massachusetts.

 

12.12 Hyperlinks.  Superna uses hyperlinks in sections of this Agreement for the sole purpose of providing you with additional information about the subject matter of such sections.  The information referenced in any hyperlink is provided for informational purposes only and is not made a part of this Agreement or incorporated in this Agreement by reference.   


12.13 Terms Subject to Change:  You acknowledge and agree that Superna may change the terms and conditions of this Agreement from time to time upon reasonable notice to the address, including email address, you provided upon signup.  If you do not agree to any changes in this Agreement, your only remedy is to cease using the Licensed Program.  Your continued use of any part of the Licensed Program or Services after Superna has provided you with reasonable notice of such change for your review will be considered your acceptance of such change.   





.

Exhibit A

Technical Support Terms


Maintenance and Technical Support Coverage Details


Coverage

Standard Offering

Tier 3

Yes

Error Correction

Yes

Updates

Yes

Upgrades

Yes

Official Technical Support Methods

Web-based (https://support.superna.net), official support email  eyeglasssupport@superna.net, published voicemail number - 1 (855) 336-1580

Availability

24 x 7 (Including holidays)

Online Knowledge Base

Yes

Tech Bulletin (tech tips, FAQs, patches)

Yes

Vmware

No

Hyper-v

No

RHEL or CENTOS

No

Suse Linux

No




1.  Error Correction:


1.1. Error Correction. Error means a failure of the Licensed Program to materially conform to its Documentation, but excluding any nonconformity resulting from Company's: (a) misuse, improper use, or unauthorized modification of any Licensed Product; (b) Company's failure to implement Minor Releases or Major Releases; or (c) the combining of the Licensed Product with hardware or software other than the Prerequisites or other than as contemplated by the Documentation. Errors are classified in Table A.



Critical

Major

Minor

Critical Errors.  Critical Errors render the Licensed Program not operational in production and have no known work-around.  Critical Errors include the following examples which is not a complete list:  

(a) complete failure to sync ALL configuration data for supported cluster configurations and versions of cluster software;

(b) inability to launch failover job;

(c) inability to log on to the UI; and

(d) inability to boot  the appliance successfully after more than 2 attempts.

Critical Errors do not include any issue resulting from the following list of examples:

  • Not running latest Release and attempting a failover;

  • Failover over jobs with errors that require manual recovery steps;

  • Failure to follow failover recovery steps as directed by support from Documentation ;

  • Any failure to contact 3rd party support resources when directed;

  • External dependencies caused by IP network, permissions, CPU, memory and disk

  • Computer System performance below recommended configurations in Documentation;

  • Failure to follow regular daily or weekly monitoring of the system operations (alarms, reports);

  • Failure to take corrective actions or submitting support ticket(s) for any procedure or condition for which no Documentation is provided; and

  • Failure to configure all Prerequisites as stated in Documentation


Major Errors.  Major Errors result in conditions that affect system operation and require immediate attention. These errors do not have critical impact on operations and can be addressed during maintenance windows.  Major Errors include the following:

(a) Problems that disrupt or prevent routine system activities such as system backup, system administration or sync function;

(b) complete failure to sync some of the SyncIQ policy configuration data for supported cluster configurations and versions of cluster software;

(c) 3rd party software or hardware that is identified as the root cause of an issue that affects the Licensed Program;

(d) Problems that significantly affect service to a large number of administrators such as emailing alarms, reports;

(e) Problems that significantly affect a function of the Licensed Program and no suitable workaround is available

Major Errors do not include any issue resulting from the following:

  • External dependencies caused by IP network, permissions, CPU, memory and disk; and

  • Computer System performance below recommended configurations in Documentation.


Minor Errors.  Minor Errors do not significantly impair the core functions of the Licensed Program and do not significantly affect ability to execute failover.  Minor Errors include the following:

(a) Problems in a function of the Licensed Program with a known work-around;

(b) Problems in non-key functions of the Licensed Program;

(c) Problems in the user Interface with a known work-around;

(d) Problems that affect usability;

(e) Problems in the Documentation; and

(f) Problems related to the pre-production use of the Licensed Program (initial installation and configuration and/or installation service not completed);

(g) Problems for missing Documented procedures



1.2. Error Classification.  Upon identification of an Error, Company shall notify Superna  using an  Official Technical Support Method.  Superna shall only respond to notifications that are properly submitted through an Official Technical Support Method.  Company must provide Superna with sufficient information to locate and reproduce the Error.  Superna will use commercially reasonable efforts to acknowledge receipt of the Error report within six (6) hours.  Superna will make the final  determination of  the classification of such Error.   


1.3     Service Level Objectives.  Superna and Company acknowledge the potentially idiosyncratic nature of any Error in the Licensed Product, and that not all Errors will be corrected.  Superna will use commercially reasonable efforts to attempt to resolve any Errors within the Resolution Time Target specified in Table 1.  However, the parties acknowledge and agree that any failure to meet Resolution Time Targets set forth in Table 1 will not constitute a failure to perform a material provision of this Agreement.


Table 1:

Error

Severity

Support Site Priority

Resolution Time Targets

Critical

High

70% = root cause identified  within 2 business days

30% = root cause identified within 5 business days


Resolution and deployment of a solution within 5 business days of identification of root cause

Major

Normal

80% = root cause identified  within 4  business days

20% = root cause identified within 10 business days


Resolution and deployment of a solution within 10 business days of identification of root cause

Minor

Low

Root cause identified within 10-20 business days


Resolution and deployment of solution in the next Minor Release


Notes on Resolution Times

  1. Intervals above are triggered by Supplier’s receipt of an Error via any published support contact method in this agreement.

  2. Response time targets to a given Company requires a sample of at least 10 cases of a classified error to be statistically measurable.

  3. Targets presented “as is” with no implied or expressed warranty or recourse if targets are not met.

  4. Targets are presented as a guideline only. 3rd party product support response times will influence the support targets outlined in this document.

  5. Company’s response to questions or inputs to provide support that go unanswered for 4 consecutive days will be automatically closed and considered failure to comply with section 4.


2. Delivery of Maintenance and Technical Support Services:


2.1 Company Obligations:  


(a) Company is responsible for  Level 1 and Level 2 Support.  "Level 1 Support" means a response  to the initial issue regarding the Licensed Product  generally or which identify and document a reported problem in the Licensed Product and  (ii) "Level 2 Support" analyze or reproduce the reported problem or to determine that the reported problem is not reproducible. Level 2 Support also means resolving any issue caused by a defect in the Licensed Product when Superna has provided an electronic notice of the defect and the needed support action to Company's designated personnel.


(b)  Supervise, control, and manage the Licensed Product, implement backup procedures and maintain a current backup copy of all programs and data to protect information in the event of Errors or malfunctions of the Licensed Product or Computer Systems and to protect data from damage during the performance of Technical Support services;


(c)  Accept use of Webex VOIP audio and screen sharing software or provide Superna with reasonable telephonic or remote screen sharing solution to Company's personnel and equipment upon which the Licensed Product is loaded or operating;


(d)  Document and promptly report Errors or malfunctions of the Licensed Product to Superna.  Company will take all necessary steps to carry out procedures provided by Superna for the correction of such Errors or malfunctions within a reasonable time;


(e)  Properly train its personnel in the use of the Licensed Product and the equipment on which the Licensed Product is loaded or operating;


(f) Update to the latest version of Licensed Product as applicable and recommended by Superna;


(g) Refrain from running virus protection, backup software or other software during Technical Support services unless authorized in writing by Superna;.


(h)   Company shall designate one primary and one backup individual (each a “Technical Contact”).  A Technical Contact shall serve as the liaison with Superna support personnel.  To avoid interruptions in services, Company must notify Superna whenever its Technical Contact responsibilities are transferred to another individual.

(i)  If Company has delegated backup “Technical Contact” to a 3rd party including Dell EMC personnel, a written request to support must include the 3rd party company name and email contact that is authorized to raise support requests on behalf of Company;

(j) Company will ensure all support cases are opened with both primary and backup Technical Contact email addresses to allow Superna to validate support entitlement;

(k) Primary support requires Company to upload System Data for most support requests;

(l) Responsibility for the Tier 1 and 2 role is with Company with respect to the software and hardware products used to provide Disaster recovery or other IT services with  Company expectations outlined in this agreement;

(m) Access if the issue is related to the Superna Licensed program and take reasonable attempts to validate and reproduce with documented steps to create the issue and provide all steps to recreate the issue to support;

(n) Provide all requested information, screen shots or log files requested by support

(o) Execute requested steps and provide response via published Official Technical Support Method;

(p) Provide dedicated contact to work with directly to resolve issues;

(q) No personal emails will be accepted to open a case example gmail.com, yahoo.com are considered personal email accounts or other domains not associated to the Company for which the software is licensed;

(r) Emails used to raise support cases must match the email domain on record from the purchase Order or provided Registration Information

(s) Request for Technical Support to assess Failover Readiness must be provided 7 days prior to any planned failover event.   Failure to provide adequate notice for assessment may result in suspension of Maintenance and Technical Support Services, at Superna’s sole discretion.  

(t) If Company receives an failover assessment of Not  Ready from technical support may result in suspension of Maintenance and Technical Support Services, at Superna’s sole discretion.

(u) Following written notice to Company and a 10 day cure period, Superna may suspend Maintenance and Technical Support Services to the extent Company's failure to comply with this Section 2.1 substantially increases the cost or difficulty of Superna providing such services.

(v) Follow all documented procedures exactly as written, modified procedures or procedures executed with missing steps will be unsupported.



2.2. Superna Obligations:

(a)  Superna will provide “Level 3 Support”   "Level 3 Support" means the service provided to isolate the reported problem to a component level of the Licensed Product, provided such reported problem is reproducible by Company and does not relate solely to enhancements or other modifications made by Company, and in such case provides a reported problem correction or a circumvention (followed as promptly as practicable by a reported problem correction). Superna will provide telephone support as and when necessary to fulfill Level 3 Support obligations, at Superna’s sole discretion.  Superna's obligations with respect to Level 3 Support are contingent upon proper use and application of the Licensed Program in accordance with applicable specifications and does not cover repair or replacement caused by negligence, alterations, or modifications not approved by Superna, or maintenance or repair not performed by Superna. Level 3 Support will also include the creation of modifications to the Licensed Program that enable the temporary or permanent resolution of a defect in the Licensed Program for which a resolution has not been electronically distributed to Company's designated personnel.   For clarity, Superna’s obligations to provide such support is contingent on Company upholding Company obligations.   


(b)  General Exclusions to Superna’s Technical Support Obligations.  Superna shall have no obligation to provide Technical Support in connection with any of the following:

      1. Isilon cluster and OneFS releases;

      2. Microsoft Active Directory;

      3. Microsoft DFS and all versions;

      4. Networking including firewalls between the appliance and the clusters;

      5. EMC SyncIQ performance or functionality;

      6. Supported browsers used to access the appliance;or Linux client machines that access the cluster;

      7. ESX host and virtual environment that hosts the virtual appliance;

      8. Applying OS patches and security changes to the appliance;

      9. DNS servers used to resolve names for failover or appliance functionality;

      10. Time sync of the appliance to the Isilon clusters time source; or

      11. Any component, software or hardware not listed above that is affecting failover of an Isilon system.



3. Version Support Policy


3.1.  Superna will support the Licensed Product in accordance with its then-current Superna Software Availability and Support Policy, a copy of which is available at http://documentation.superna.net/eyeglass-isilon-edition/software-release-download  link. In order to ensure uninterrupted Maintenance and Technical Support Services, Company shall ensure that Company is using a supported version of the Licensed Product in accordance with such policy.


3.2       Company will be responsible for ensuring that the particular release specified for

the system software (such as operating system, firmware or utilities) is being used. Superna may suspend Maintenance and Technical Support Services until the necessary system software is installed. Company's obligation to pay fees for the then-current Maintenance and Technical Support Period will not be affected by such suspension.